How Much Should Site Owners Control Free Speech Online?

Gene Policinski Commentary
Inside the First Amendment

By Gene Policinski
First Amendment Center vice president/executive director

So who gets to say, You can’t say — or show — that, and make it stick?

Well, the First Amendment provides that the government cannot easily control what we say or otherwise express in public, even when the speech is ill-tempered, rude or embarrassing to some.

But that protection — applied by courts and legislatures since 1791 — grew up on village greens and in town-hall meetings, on street corners and in printed pages, in conversations across the fence and debates across the nation. The Internet poses important challenges to those traditional practices.

For example, there’s growing concern over the power of private companies, which aren’t bound by the First Amendment, to control free expression in cyberspace. Is the Web so pervasive, so vital that those who operate it have taken on a kind of governmental status, private in ownership but public in impact? Are Internet providers quasi-public, like utility companies?

Two recent incidents involving free speech help explore the issue. In the first, the South Dakota Supreme Court ruled Dec. 30 in favor of a man who cursed police officers on a public street. The other involved a mother who posted a photo on Facebook — a privately owned social-networking site with some 140 million users worldwide — of herself nursing a child.

In the South Dakota case, the state’s high court drew a careful but necessary line between speech that you and I might well call rude and insulting but that is protected, and speech that constitutes “fighting words,” which don’t receive legal shelter.

In 2007, a man leaving a bar in Brookings, S.D., at 2 a.m. yelled a stream of profanities at a passing patrol car within earshot of more than 100 people. The officers arrested the man for disorderly conduct — specifically “making unreasonable noise.” Though prosecutors later said the expletives posed a threat because they might have incited others to attack the police, in fact no one did. And while the justices didn’t endorse the man’s behavior, a majority said the arrest was unjustified without actual violence.

Each side in the case had its say in court about what was said on that street — and South Dakotans can turn to the published court opinion to get an account of how and why the decision was reached.

Contrast that with this month’s Facebook flap over the nursing mom whose posted photo exposed more breast than some Facebook users wanted to see. In response to a complaint, the company removed the photo. A spokesman said Facebook’s policies didn’t preclude such pictures — just those that expose too much. The reasons involved concerns about exposing young children to nudity and about online predators and sexual deviants.

As it happens, another major network site, MySpace — sometimes called the Internet’s most popular site — faced a similar recent controversy. Again, photos were removed.

In each case, complaints were received, considered by management, and material was removed — by private entities that have the right to determine what they will show or not show on their sites. But there was no notice to those who posted the materials. Nothing in the public record about internal company discussions. Nothing resembling a published court opinion. No appeal in the legal sense. No due process.

The issue here runs deeper than words that offend and pictures that embarrass. Critics complain, for example, that some U.S. Internet companies have agreed to cooperate with government censors in China in exchange for access to that nation’s huge marketplace.

I much prefer the tussle and tug of the marketplace of ideas to the legislative floor or the courtroom when it comes to settling issues of free expression. In these two online instances, that means letting customers vote with their wallets and their keyboards once a company sets a policy.

But the reality is that for hundreds of millions of people in the United States and elsewhere, companies like Facebook, MySpace and Google have tremendous power to control what we say, see and hear. Huge numbers of people could, in effect, never know what they’re missing.

For more than 200 years, private companies have set their own standards in deciding what they print, publish or otherwise present to the public. But never before have nongovernment officials had the global reach or the technological ability to shut communication on or off, nearly instantly and completely.

The nation’s Founders felt it necessary to provide constitutional protection for self-expression and the free flow of information from those who govern real communities. Our task now is to discuss and decide how — and even if — those protections should apply to those who govern virtual ones.

Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: www.firstamendmentcenter.org. E-mail: [email protected].